ACCIDENT COMPENSATION - Transport accident - Causation - Whether direction to jury on causation was deficient - Where direction suggested the jury's task was to consider which of the appellant or the respondent was negligent - Appeal allowed.

1 Jiang Hong Gui ('the appellant') instituted proceedings against David Glyn Weston ('the respondent') in the County Court for damages arising from a collision that took place on the night of 11 November 2004.

2 The collision occurred at the intersection of Springvale and Waverley roads in Melbourne ('the intersection'). The appellant, a pedestrian, was crossing Waverley road when he was struck by the respondent's car. The appellant alleged that the respondent was negligent and claimed loss and damage arising from the accident.

3 The trial before Judge Saccardo and jury was heard over a period of six days.

4 On 17 November 2010, the jury returned a verdict for the respondent. They found that there was no negligence on the part of the respondent which was a cause of the appellant's injury, loss and damage.[1]

5 The appellant appeals on the grounds that the verdict in favour of the respondent was one that no reasonable jury could have reached and further, that the trial judge failed to give adequate directions to the jury on the issue of causation and the use of certain evidence.

6 The appellant gave evidence at the trial that the collision happened around 9:30 pm on 11 November 2004. It was dark and raining. He had just been in another accident to the north of the intersection and intended to seek help from the service station on the southeast side of Springvale road. The collision happened when he crossed the intersection from west to east on the north side of Waverley road.

7 The appellant maintained that when he started to cross the intersection, the walking sign was green. When he arrived at the median strip, the sign started to flash red. He hesitated momentarily, but continued to cross at a fast pace. As he reached the southbound lanes immediately next to the right-turn lane, he saw a car pick up speed. He had almost passed the car, but was unable to jump out of the way before it hit his left leg. The appellant landed on the ground on his right shoulder and broke his left leg.

8 The appellant was taken to hospital, where he stayed for about two weeks. He had steel frames fitted and screws placed in his leg.

9 At the end of 2005, the appellant was admitted to hospital for a period of about two weeks for psychiatric treatment. As a consequence of his inability to overcome psychological barriers, the appellant abandoned his PhD thesis and returned to China in early 2007.

10 The appellant admitted at trial that he should not have crossed the road in the first place, but said that the accident could have been 'avoided by two sides, not just by [him]'. He also admitted that he was wearing dark clothing on the night of the accident.

11 Further, the appellant gave evidence that an infringement notice for failing to obey a traffic signal was issued by the police at the scene, which he later paid.

12 The respondent gave evidence that traffic was heavy that night and the road conditions were poor due to heavy rain. He had missed the green light and pulled up as the first car at the intersection, travelling south on Springvale road. The respondent maintained that he was probably in the lane immediately next to the right-turn lane. There was no obstruction to his peripheral vision, the intersection was well-lit and he had his windscreen wipers on.

13 The respondent gave evidence that he moved forward when the traffic light turned green and did not see the appellant at all prior to colliding with his left leg. He estimated that he had travelled about one and a half metres before he struck the appellant.

14 Finally, two independent witnesses gave evidence about the accident. Their evidence was, in many respects, unsatisfactory and relevantly, of no assistance to the respondent.

15 The grounds of appeal are as follows: [2]

1. On no reasonable view of the evidence could the jury have found that there was no negligence of the respondent that was a cause of the appellant's loss or damage.
2. The finding of the jury that there was no negligence on the part of the Respondent that was a cause of the appellant's loss or damage was not open to the jury on the evidence.
3. The finding of the jury that the respondent was not negligent and/or that negligence did not contribute to the appellant's loss and damage was against the evidence and the weight of the evidence.
4. The learned trial judge failed to direct the jury in light of the law as to the real issues raised in respect of question 1, that is, whether there was any negligence of the defendant that was itself a cause of injury notwithstanding any evidence of concurrent causes, in particular the evidence that the plaintiff's own actions were a cause of his injury, and how the evidence related to the causation issue.
5. That the learned trial judge failed to direct the jury that it was only necessary for the appellant to show that any breach of the duty of care owed by the respondent to him was a cause of the appellant's injuries.
6. That the learned trial judge misdirected the jury by summarising the submission of counsel for the respondent that "The real nub of the case is whose fault the accident was" without directing that this was an erroneous approach to the jury task of determining whether the defendant's negligence was a cause of the plaintiffs injuries.
7. That the learned trial judge erred by directing the jury that payment of the infringement notice (Exhibit G) may be evidence of negligence without explaining that this evidence was only relevant to a consideration of questions 3 and 4 (contributory negligence) and was irrelevant to question 1 (negligence).
8. That the learned trial judge erred in allowing evidence to be given of payment of the infringement notice as an admission of liability or in prejudice of the appellant's claim contrary to section 33(2) of the Infringements Act 2006.

16 The first three grounds of appeal seek to impugn the jury verdict that there was no negligence on the part of the respondent, which was a cause of the appellant's injury, loss and damage. It is convenient to deal with these grounds together.

17 The appellant contends that in light of the evidence, no reasonable jury could have found that the respondent was not negligent at all and that in effect, such a verdict should be regarded as irrational.

18 The respondent contends that it was open to the jury to find that he was not negligent.

19 The appellant is required to show that the finding of no negligence was one that no reasonable jury could reach.[3] In other words, the verdict cannot be supported having regard to the evidence.

[17] In determining whether a civil jury acted reasonably in reaching its verdict, an appellate court must approach the case on the basis most favourable to the respondent to the appeal. The question for the appellate court is not whether the verdict is right or appears to be right but whether in the light of the evidence the verdict shows that the jury failed to perform its duty. As long as the verdict cannot be described as irrational, it must stand. As Else-Mitchell J pointed out in Carr Shipping and Trading Co Pty Ltd v Sydney City Council, an appellate court is not entitled to set aside a jury's verdict because the court regards the verdict "as illogical, unsatisfactory or different from that which it would itself have reached". These principles apply to appeals in defamation actions as well as to appeals in other common law actions.[5]

21 In my opinion and based on the evidence, no reasonable jury could have reached the decision it did. On the evidence most favourable to the respondent, the verdict cannot be supported. I would describe the verdict as irrational. The unfortunate consequence is that the jury failed to perform its duty and there must be a re-trial.

22 The evidence most favourable to the respondent included the following:

• the accident occurred at night;
• it was raining heavily;
• the appellant was wearing dark clothing; and
• the appellant crossed the respondent's path hastily on either a red light or a flashing red pedestrian light.

23 The respondent regarded as favourable the fact that he did not see the appellant. In my opinion, this is not favourable to the respondent for the reasons set out below.

24 Mr Priest QC, who appeared with Mr Gates for the respondent, submitted that the finding of no negligence was open to the jury and was supported by the evidence referred to in paragraph 22.

25 However, Mr Priest conceded that the evidence showed that:

• the intersection was well lit;
• the respondent had his windscreen wipers on and had no impaired vision;
• there was no car to the right of the respondent and there was no obstruction to his peripheral vision;
• the respondent had been stationary for a short period of time, being the time taken for the traffic light to change from red to green;
• the appellant crossed the width of the respondent's car; and
• the respondent did not see the appellant.

26 The matters referred to in paragraph 25, particularly the last bullet point, should have constrained the jury to find a failure by the respondent to exercise reasonable care and keep a proper look-out.

27 The standard of care imposed on drivers of cars is a high one.[6] In Clarke, Beazley JA referred to the decision of Mahoney P in Stocks and said:

This Court has consistently held that the standard of care for drivers of motor vehicles is high. The standard, of course, always remains that of the reasonable driver, but in this Court's decision in Stocks & McDonald Hamilton Co Pty Limited v Baldwin (1996) 24 MVR 416, the then President of the Court, Mahoney P, set out why the standard of care is a high one and why it must take into account the fact that there is a likelihood, for example, that pedestrians will suddenly come into the path of an oncoming vehicle.[7]

28 In Clarke, a pedestrian hurried across the road to beat a traffic light which had changed to red and entered the path of the driver's moving vehicle. The driver did not see the pedestrian as there was a line of cars next to him causing some obstruction. However, he did not slow down when approaching the traffic light. The Court of Appeal reversed the decision of the trial judge, who had found no negligence on the part of the driver. It held that the driver was responsible to the extent of one-third. Beazley JA (with whom Handley and Sheller JJA agreed) said this:

In my opinion the respondent was negligent in failing to slow down in that circumstance. He should have been aware of the possibility that a pedestrian might cross the road by passing through the stationary line of vehicles and then onto the part of the road with moving traffic.[8]

29 In Manley v Alexander, [9] a decision of the High Court, the majority said:

[12] But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.[10]

30 In Manley, the injured plaintiff was intoxicated, dressed in dark clothing and lying on the road when he was struck by the defendant and seriously injured. The driver was momentarily distracted by a man standing on the side of the road and thinking that he would step into the road, veered to the centre of the road without reducing speed. When the driver re-focused on the road ahead, he saw an object on the road. He did not brake and struck the plaintiff. The Full Court of the Supreme Court of Western Australia held, reversing the trial judge who dismissed the plaintiff's claim, that the driver had failed to exercise reasonable care and had been negligent to the extent of 30 percent. The High Court by majority agreed.

31 In the present case, the appellant submitted that the explanation as to why the respondent did not see the appellant was no more than a particular and positive statement of the negative proposition that the respondent was not keeping a proper look-out in all the circumstances.[11]

32 The appellant submitted that the presence of a person on a pedestrian crossing, who had mistimed the crossing or tried to beat the traffic lights, was a foreseeable possibility. The respondent did not offer any explanation as to why he failed to see the appellant. Any explanation was entirely within his own knowledge.[12] The appellant submitted that the absence of an explanation by a driver as to why he did not see what, in all the circumstances he should have seen, has been sufficient to support a conviction for careless driving.[13]

33 In Rabjohns,[14] the Court held that 'unless and until something is suggested by a defendant by way of explanation, the facts may be so strong that the only inference is that there has been careless driving'.[15]

34 The irresistible conclusion is that had the respondent exercised reasonable care and kept a proper look-out, he would have observed the appellant in the vicinity of the vehicle and would have been able to react to the appellant's ill considered and careless attempt to cross the road by beating the traffic light. In my opinion, the failure of the respondent is probably worse than that of the driver in Clarke, whose vision was obstructed, and the driver in Manley, who was momentarily distracted and gave this distraction as an explanation. The explanation was accepted by the minority.[16] No such explanation was provided by the respondent.

36 In my opinion, the trial judge fell into error in not adequately instructing the jury in relation to causation.

37 The trial judge correctly identified, as appears from the questions, that what was required from the jury was a determination as to whether the negligence of the respondent was a cause of the accident.

38 The reference to a cause appears twice in the Charge.[17] His Honour made the reference in the context of the first question the jury would be required to answer. However, he did not explain that to answer the question affirmatively, they had only to be satisfied that the defendant's negligence was one of the causes of the plaintiff's injury and not the only cause or even the principal cause.

39 Mr Priest submitted that this was sufficient and that when read as a whole, the Charge was adequate in relation to causation.

40 I disagree and having read the whole Charge, I am of the opinion that it was deficient in this respect.

41 At page 7 of the Charge, the trial judge instructed as follows:

The plaintiff has the onus to establish on the balance of probabilities that the accident occurred by reason of the negligence of the defendant.[18]

42 At page 71 of the Charge, the trial judge repeated, without elaboration, explanation or qualification, what counsel for the respondent had submitted in his closing address, namely that 'the real nub of the case is whose fault the accident was'.[19] The failure by the trial judge to comment on what was suggested to be the real nub of the case would easily be seen by the jury as endorsement by the trial judge that this was the real question they had to decide.

43 The directions are suggestive of the requirement that the jury consider who was negligent, the appellant or the respondent. The directions are not consistent with the notion of multiple causes and with the requirement that the defendant's negligence could be only one of many causes for the plaintiff to succeed. Unqualified and unexplained, his Honour's statements do not sit well with the notion of multiple causes and were apt to mislead the jury. They comprised the first and last words on the topic. The two intermediate references to a cause would have done little to ameliorate the position.

44 In the circumstances, the jury should have been told expressly that the respondent's negligence did not have to be the sole cause of the accident. There could be many causes, including (and this is fundamental) the negligence of the appellant. This is all the more so where the parties were plaintiff and defendant. Acceptance of one party's negligence did not exclude the other's, despite the otherwise adversarial proceeding.

45 The reference and apparent endorsement by the trial judge of what was said to constitute the real nub of the case was not only confusing, but with respect wrong, as the proposition suggests that only one party ('whose fault') was at fault and caused the accident. It was not the nub of the case and to call it the real nub, exacerbates the matter.[20]

46 Mr Priest submitted, with some justification, that these grounds of appeal were not the subject of any exception at the trial and as the relevant matters ought to have been raised, the appeal in relation to these grounds should not succeed and a new trial should not be ordered. He referred to the well known statement of Barwick CJ in General Motors-Holdern's Pty Ltd v Moularas.[21] However, the Chief Justice did not intend to express an absolute position and this Court has held that a failure to raise by way of exception a matter that could and should have been raised, may not be fatal if in the circumstances, a substantial wrong or miscarriage of justice would occur.[22] This is such a case.

47 Accordingly, in my opinion, grounds 4, 5 and 6 are made out.

48 The inevitable result following success on appeal grounds 1 to 6 is that the appeal must be allowed. Consequently, it is strictly not necessary to deal with appeal grounds 7 and 8, which deal with what was called the Infringement Notice in written submissions and for the most part of oral argument. However, something should be said about the matter, albeit briefly.

49 The document, which is called a Notice of Enforcement Order ('the Notice'),[23] was tendered by the appellant as Exhibit G.

50 Ground 7 is to the effect that the trial judge, having admitted the Notice into evidence, should have given the jury an appropriate direction to the effect that although the Notice could be used as evidence of negligence, this was not relevant to question 1, which concerned the negligence of the respondent.

51 The trial judge deals with the Notice at pages 40 to 42 of the Charge. Although the trial judge told the jury, correctly in my view, that payment of the Notice 'does not by itself establish negligence' but 'may be evidence of negligence',[24] his Honour went on to direct that the jury could 'use the payment of the [N]otice in the way in which you decide is appropriate'[25] and later, that '[t]he way you use any of the exhibits is completely a matter for you'.[26]

52 The Notice was regarded by the jury as being very important. At the very beginning of the Charge, the trial judge was interrupted twice by the foreman in relation to the Notice and related 'police investigation' and 'interview'.[27]

53 In the circumstances and given the matters that inform grounds 4, 5 and 6 (and 1, 2 and 3 - the matters are not unrelated), the trial judge should, in my opinion, have made it absolutely clear that the Notice was only relevant to questions 3 and 4, dealing with contributory negligence and specifically not relevant to question 1.

54 Accordingly, in my opinion, ground 7 is made out.

55 Ground 8 is to the effect that evidence of payment of the infringement notice and the Notice should not have been admitted because such evidence was contrary to s 33(2) of the Infringements Act 2006 (Vic) ('the Act'). This matter was not raised or considered by the trial judge and as noted, it was the appellant that tendered the Notice and gave the relevant evidence.

56 Section 33(2) of the Act provides:

33 Effect of expiation

(2) The payment of an infringement penalty by a person is not and must not be taken to be-

(a) an admission of guilt in relation to the offence; or

(b) an admission of liability for the purpose of any civil claim or proceeding arising out of the same occurrence, and the payment does not in any way affect or prejudice any such claim or proceeding.

57 By s 3 of the Act, 'infringement penalty means the amount stated in an infringement notice as payable in respect of the infringement offence to which the notice relates' and 'infringement notice means a notice in respect of an infringement offence served or to be served in accordance with Part 2'.

58 The respondent submitted that the Notice was not 'served in accordance with Part 2', since Part 2 did not come into operation until after the date of the Notice. Accordingly, any infringement penalty would not be caught by s 33(2) because it would not be 'an amount stated in an infringement notice as payable in respect of the infringement offence to which the notice relates'.

59 Sections 188 to 190 of the Act exposes the flaw in the argument. The infringement notice need not comply with Part 2 but can be 'in a form which complied with any Act, regulation or other instrument as in force immediately before the commencement of section 13'.[28] Section 13 deals with the form of an infringement notice. Although s 190 may arguably relate to a different matter, namely the enforcement of infringement notices issued other than under Part 2, when read together with ss 188 and 189, it is clear that the Act intended to include within its operation, infringement notices other than those issued under Part 2 and indeed before Part 2 came into operation. Clearly, this is what was intended.

60 Accordingly, to the extent that infringement penalty in s 33(2) - the governing phrase of the section - refers to infringement notice, it embraces not only the notice provided in Part 2, but any other valid notice.

61 Accordingly, in my opinion, s 33(2) of the Act does and did apply.

62 To some extent, the matter is academic. So far as the trial is concerned, it was not raised and surprisingly, the appellant gave the relevant evidence and tendered the Notice without demur. Although this Court gave the appellant leave to further amend the Notice of Appeal by the introduction of ground 8, an issue arises, as noted earlier, as to whether in the circumstances, the appellant is now, despite a forensic decision being made on his behalf at trial in relation to the Notice, able to rely on the Act? This poses a difficult question.[29]

63 In the circumstances and given the inevitable result, and as the matter (in particular waiver) was not fully argued, I do not propose to deal with ground 8 any further. So far as any new trial is concerned and without wishing to foreclose on any forensic or tactical decisions by either party and so far as may be relevant, it is my opinion that the Act does apply and the Notice and any related evidence should not be received.

64 Finally, in light of the appellant's evidence and concession that he was negligent, this issue should not have assumed the level of prominence that it did.

65 Without determining the waiver point, it is difficult, undesirable and indeed unnecessary, to rule on ground 8.

66 I would allow the appeal, set aside the orders of the trial judge and order a retrial.

[1] This was, in fact, question 1 that was referred to the jury. The question was in the following terms: 'Was there any negligence on the part of the defendant which was a cause of the plaintiff's injury, loss and damage?'

[2] See Amended Notice of Appeal dated 15 March 2011. Leave was granted to the appellant at the hearing of the appeal on 25 August 2011 to file a Further Amended Notice of Appeal, which amended ground 7 and included ground 8 as an additional ground.

[3] John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 201 ALR 77 ('Fairfax').

[6] Clarke v Freund [1999] NSWCA 197 ('Clarke'); Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416 ('Stocks').

[7] Clarke [1999] NSWCA 197, [14] (Beazley JA) (emphasis added).

[9] (2005) 233 ALR 228 ('Manley').

[10] Ibid 231 [12] (Gummow, Kirby and Hayne JJ).

[11] Pledge v Road and Traffic Authority [2004] HCA 13; (2004) 205 ALR 56, 59 [12] (Hayne J) ('Pledge').

[12] Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367, 372 (Dixon CJ).

[13] Rabjohns v Burgar [1971] Crim LR 46 ('Rabjohns'); Sanders v Hill [1964] SASR 327, 329 - 330.

[14] Rabjohns [1971] Crim LR 46.

[15] Ibid 47 (Lord Parker CJ, Melford Stevenson and Cooke JJ).

[16] Manley (2005) 233 ALR 228, 236-237 [43]-[44] (Callinan and Heydon JJ).

[17] The references are at pages 10 and 19 of the Charge.

[18] Transcript of Proceedings, Gui v Weston (County Court of Victoria, CI-09-04833, Judge Saccardo, 16 November 2010) 7, [4]-[6] (Judge Saccardo) (emphasis added).

[19] Ibid 71, [15]-[16] (Judge Saccardo).

[20] The matter is further exacerbated by the apparent endorsement by the trial judge, of a submission by the respondent's counsel, to the effect that the real cause of the collision should be assessed on the basis of who had the last opportunity of avoiding the accident. This is not only consistent with single fault but does not represent the correct legal position.

[21] [1964] HCA 39; (1964) 111 CLR 234, 242 (Barwick CJ).

[22] Butler v Rick Cuneen Logging Pty Ltd [1997] 2 VR 99.

[23] This is the notice that follows non payment of an infringement notice.

[24] Transcript of Proceedings, Gui v Weston (County Court of Victoria, CI-09-04833, Judge Saccardo, 16 November 2010) 41 [8]-[11] (Judge Saccardo).

[27] Ibid 3 [16]-[17]; 4 [12]-[13] (Foreman).

[28] Infringements Act 2006 (Vic) s 190.

[29] A person may, by his or her conduct, waive a provision of an Act of Parliament intended for his or her benefit. The issue here is whether the statutory provision merely creates a private right for the private benefit of an individual such as the appellant (which may be waived) or is a provision reflecting a public policy for the benefit of the community (Commonwealth v Verwayen (1990) 170 CLR 394, 496). It may be an over-simplification to suggest that the provision operates for the sole benefit of the appellant.